Opinion
Argued June 14th, 1932
Decided July 26th, 1932.
ACTION of trespass, brought to the Court of Common Pleas for New London County, where the defendant filed a counterclaim and the issues were tried to the jury before Cronin, Acting Judge; verdict and judgment for the plaintiffs on the complaint and for the defendant for nominal damages on the counterclaim, and appeal by him. No error.
The plaintiff filed a motion to dismiss the appeal which was denied.
PER CURIAM. On January 18th, 1932, a motion to set aside the verdict in this case was denied and judgment entered on the verdict. On January 26th the defendant appealed "from the verdict rendered and from the action of the court in failing to set aside the verdict of the jury." This appeal was sufficient to bring before us the decision of the trial court in denying the motion to set the verdict aside. General Statutes, § 5692; Rules for Appellate Procedure, § 2; McCusker v. Spier, 72 Conn. 628, 631, 45 A. 1011; State v. Faatz, 83 Conn. 300, 307, 76 A. 295. But it was not such an appeal from the judgment as would permit the raising of errors claimed to have occurred on the trial by a finding. The trial court never extended the time for filing such an appeal and there was no basis for the extensions of time to file a request for a finding which it granted. Neither statutes nor rules now limit the time in which evidence shall be filed upon an appeal from the decision of a trial court upon a motion to set a verdict aside, and we cannot say that, under the somewhat peculiar circumstances of this case as detailed in argument before us, there has been such an unreasonable delay as justifies us in dismissing the appeal on that account. As the case is pending on appeal, the trial court may still, upon written application and for good cause shown, grant an extension of time in which to file an appeal from the judgment. Rules for Appellate Procedure, § 2; General Hospital Society v. New Haven Rendering Co., 79 Conn. 581, 582, 65 A. 1065. If the time to appeal from the judgment should be extended, the court, in view of the long period the case has been pending, should fix the briefest time consonant with the circumstances of the case and the duty of counsel to exercise diligence in prosecuting the appeal.
The motion to dismiss is denied.
Lucio DeBiasi, for the appellant (defendant).
George H. Gilman, for the appellees (plaintiffs).
On March 1st, 1929, the plaintiffs and the defendant owned adjoining lots in New London. The complaint alleges that on or about that date the defendant erected a stone wall on the plaintiffs' lot and cast dirt and stones on it, upon their garden, destroying the grass, growing plants and herbage thereon. The plaintiffs recovered a verdict for $250. In 1929 the defendant concededly contracted to have a house erected on his land and in the course of the work a considerable quantity of rocks was removed from the cellar and placed in the back of the lot. There was evidence that some of these rolled down upon the plaintiffs' premises. The defendant built a stone wall along the boundary and there was evidence that this also was done in the spring of 1929 and that it encroached upon the plaintiffs' land. He caused a considerable amount of dirt to be brought upon the premises and the jury might have found that a large part of this was used to cover the rocks in levelling the rear of his premises and that some of this dirt was washed through the rocks and wall onto the plaintiffs' lot, preventing them from thereafter maintaining a garden as they had done in previous years.
The defendant contends that any wrongs done to the plaintiffs were done in the course of the performance of contracts he had made to erect the building and build the wall and that they were therefore the torts of an independent contractor, for which he would not be liable. Whether the defendant would be liable on account of the stones rolling onto the plaintiffs' premises as the result of the excavation of the cellar or for the encroachment upon their land by the wall is not now of consequence. No damages from these wrongs were shown and so they would in any event not have justified a verdict for more than nominal damages. There is no evidence that the levelling of the rear of the defendant's lot and spreading of the dirt upon it was done by an independent contractor and for any damage to the plaintiffs' premises due to the washing of the dirt through the rocks onto them the defendant would be liable. Spoo v. Garvin, 236 Ky. 113, 117, 32 S.W.2d 715; and see Tide Water Oil Sales Corporation v. Shimelman, 114 Conn. 182, 188, 158 A. 229. The jury might have found that sufficient sand and dirt washed onto the plaintiffs' garden in 1929 to prevent them from utilizing it that year or the two succeeding summers before the bringing of the action. There was evidence that previous to 1929 the plaintiffs supplied their table with vegetables from June to Christmas each year and that, lacking this supply, they bought vegetables, costing them $3 to $4 a week. The loss so occasioned would be special damages properly recoverable. Barnes v. Berendes, 139 Cal. 32, 37, 69 P. 491, 72 id. 406. This evidence would justify the amount of the verdict.